The Queen v Zheng

[2006] NZCA 175

IN THE COURT OF APPEAL OF NEW ZEALAND

CA53/06

THE QUEEN

v

LING LI ZHENG

Court:Chambers, Robertson and Arnold JJ

Counsel:H Leabourn for Appellant

B J Horsley for Crown

Judgment:26 July 2006

JUDGMENT OF THE COURT

AAn order that, instead of allowing the appeal against the conviction for attempted murder, the verdict of guilty on that charge is quashed and substituted for it is a verdict of guilty on the alternative charge of wounding Kaixiang Zhang with intent to cause him grievous bodily harm.

BOn the substituted verdict, the Court sentences the appellant to six years’ imprisonment.  The appellant must serve a minimum period of imprisonment of two years and seven months.

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REASONS OF THE COURT

(Given by Robertson J)

[1]       This appeal against conviction and sentence has been heard on the papers under s 392B of the Crimes Act 1961.  The relevant materials, including written submissions which have been received in accordance with r 29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.

[2]       It is an appeal against a conviction for attempted murder and the sentence of seven years’ imprisonment with a minimum non-parole period of three years imposed on this appellant for that crime.

[3]       He and a co-accused, Shangbin He, faced trial in the High Court at Auckland in March 2005 before Harrison J and a jury on a charge of attempted murder of Kaixiang Zhang on 1 February 2003 at Auckland and an alternative charge of wounding Kaixiang Zhang intending to cause grievous bodily harm.

[4]       The jury returned a guilty verdict on the attempted murder charge.   Shangbin He was sentenced to eight and a half years’ imprisonment with a minimum non-parole period of four years and three months.  Li Ling Zheng was sentenced to seven years’ imprisonment with a minimum non-parole period of three years.

[5]       Shangbin He immediately appealed.  In a decision delivered on 28 October 2005 (CA169/05), this Court, instead of allowing the appeal against the conviction for attempted murder, quashed the verdict of guilty on that charge and substituted for it a verdict of guilty on the alternative charge of wounding with intent to cause grievous bodily harm.

[6]       On the substituted charge, Shangbin He was sentenced to seven and a half years’ imprisonment with a minimum non-parole period of three years and nine months.

[7]       Ling Li Zheng, as anticipated by the Court in R v He CA169/05 28 October 2005, appealed against conviction and sentence on 2 February 2006 on the basis that the reasoning and conclusions in the He case applied to him as well.  There was an application for leave to bring an appeal out of time which has been granted.

[8]       Mr Leabourn, counsel for the appellant, and Mr Horsley, for the Crown, have filed written submissions in which they agree that the reasoning of this Court in He must apply to this case also.  We agree and the charge upon which the conviction is entered should be the same for this appellant.

[9]       There is no reason why the same approach to sentence taken in relation to Shangbin He should not be adopted thus ensuring the parity between the two co-accused remains the same.  On that basis the sentence imposed on Ling Li Zheng in respect of the new conviction is six years’ imprisonment with a minimum non-parole period of two years and seven months.

Result

[10]     An order that, instead of allowing the appeal against the conviction for attempted murder, the verdict of guilty on that charge is quashed and substituted for it is a verdict of guilty on the alternative charge of wounding Kaixiang Zhang with intent to cause him grievous bodily harm.

[11]     On the substituted verdict, the Court sentences the appellant to six years’ imprisonment.  The appellant must serve a minimum period of imprisonment of two years and seven months.

Solicitors:
Crown Law Office, Wellington